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Ontario Highway Traffic Act

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Re: got careless driving ticket for HITTING the back of a tr
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PostPosted: Tue Aug 18, 2015 11:55 am 
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Section 148(5) deals with overtaking cars. Its aim is actually to require that you pass on the left. However, prosecutors commonly use that section as a means to negotiate down from careless driving or follow too closely interpreting it as a 'lane change' section as oppose to an 'overtaking' section. Unfortunately though, many jurisdictions interpret it to mean that only a lane available to you for passing is permitted. While clearly all lanes to your left going in the same direction as you (including a center turn lane) fit within the section, some prosecutors refuse to accept an on-coming lane as meeting it. It really depends on the prosecutor.

Clearly if the line is not a solid line then you should be able to 'overtake' on the opposing lane. You can't overtake on a solid white line. However, it gets controversial when the line is solid yellow. Legally speaking though, I think it should also be permitted, but again, it all depends on the prosecutor's interpretation.

Of course, your paralegal really won't be able to argue much with the prosecutor on these issues since they are just trying to negotiate to a lower charge (which doesn't leave you many options!). They can try to convince the prosecutor about the interpretation of the section and how opposing lanes also fit within the section, but if the prosecutor disagrees, the matter will simply be set for trial on the careless charge. Section 148(5) won't even be discussed in court since that is not what you are being charged with and it is NOT an included offense of careless driving; unlike follow too closely.

Justices of the Peace also have different opinions on section 148(5). Some will even require that the prosecutor set out in the fact where the 'live' lane on the left was. Bottom line: the case law is not definitive on section 148(5).

If you don't qualify for section 148(5), you're only hope will be Follow Too Closely. Otherwise, careless driving it is!


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Re: got careless driving ticket for HITTING the back of a tr
PostPosted: Tue Aug 18, 2015 5:18 pm 
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highwaystar wrote:
Actually, the officer absolutely needs to attend. Only they can properly identify you. Without that, the prosecutor fails to meet its case. Its weird that someone would even suggest that the officer is not essential; its not possible to prove the case otherwise since it fails on the ID element.

I don't want to distribute misinformation within the community. I can see where the argument can be made with respect to the ID element. Why can't the other driver identify the defendant?

Sharing my observations: on two occasions where I was the crown witness on a careless driving charge, the officers were not present. The defendants with their paralegal plead guilty to 148(5). I've also seen a different case where they proceeded to trial without the officer being present. The other driver identified the defendant.

If the lack of the officer's presence was fatal to the case? Why did they plea-deal and/or prosecution proceed to trial?


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Re: got careless driving ticket for HITTING the back of a tr
PostPosted: Tue Aug 18, 2015 7:22 pm 
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Well if that is the case and the officer is NOT present and only the other driver, then you definitely want somebody else to represent you and not show up yourself. If you are not present (and you do not need to be unless it is a criminal charge which I don't believe this is) then the other driver cannot identify you and they have no case. If the officer is present though, then officer can use your drivers license information to identify you even if you are not there.

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+++ This is not legal advice, only my opinion +++


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Re: got careless driving ticket for HITTING the back of a tr
PostPosted: Tue Aug 18, 2015 8:41 pm 
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highwaystar wrote:
Section 148(5) deals with overtaking cars. Its aim is actually to require that you pass on the left. However, prosecutors commonly use that section as a means to negotiate down from careless driving or follow too closely interpreting it as a 'lane change' section as oppose to an 'overtaking' section. Unfortunately though, many jurisdictions interpret it to mean that only a lane available to you for passing is permitted. While clearly all lanes to your left going in the same direction as you (including a center turn lane) fit within the section, some prosecutors refuse to accept an on-coming lane as meeting it. It really depends on the prosecutor.

Clearly if the line is not a solid line then you should be able to 'overtake' on the opposing lane. You can't overtake on a solid white line. However, it gets controversial when the line is solid yellow. Legally speaking though, I think it should also be permitted, but again, it all depends on the prosecutor's interpretation.

Of course, your paralegal really won't be able to argue much with the prosecutor on these issues since they are just trying to negotiate to a lower charge (which doesn't leave you many options!). They can try to convince the prosecutor about the interpretation of the section and how opposing lanes also fit within the section, but if the prosecutor disagrees, the matter will simply be set for trial on the careless charge. Section 148(5) won't even be discussed in court since that is not what you are being charged with and it is NOT an included offense of careless driving; unlike follow too closely.

Justices of the Peace also have different opinions on section 148(5). Some will even require that the prosecutor set out in the fact where the 'live' lane on the left was. Bottom line: the case law is not definitive on section 148(5).

If you don't qualify for section 148(5), you're only hope will be Follow Too Closely. Otherwise, careless driving it is!


Well it isn't careless and you can't give somebody a charge that doesn't ft like following to close because I wasn't the other car was going 15 and I was 65 so if it was follow to close I would've hit him when he was going 40 still or whatever so they can't charge me with that and not with careless because it wasn't it's not like if there is no charge that sticks they give you a random one the only one that keeps sense is 148(5) and the prosecutor doesn't make the law either there opinion is based on the law and if the law doesn't say it has to be a double lane or a dotted line then it does matter he can't base it on what he thinks it's the law. It's what the other guy posted the last thread on the first page the person got charged with careless then dropped to follow to close and then it got dropped because there was no proof of follow to close. So I will be talking to paralegal tomorrow and going for 148(5) I understand prosecutor is a big shot but there not the law the represent it and they can just do what r they want if it doesn't fit the situation which neither careless or follow to close does

And they can't decide on solid yellow as it is a guideline in Ontario the prosecutor can't say oh well I don't like that so you can't pass THE LAW IS THE LAW and the law doesn'tsay anything about solid yellow other than its a guideline and you may pass if safe or overtake


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Re: got careless driving ticket for HITTING the back of a tr
PostPosted: Tue Aug 18, 2015 9:44 pm 
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jsherk wrote:
Well if that is the case and the officer is NOT present and only the other driver, then you definitely want somebody else to represent you and not show up yourself. If you are not present (and you do not need to be unless it is a criminal charge which I don't believe this is) then the other driver cannot identify you and they have no case. If the officer is present though, then officer can use your drivers license information to identify you even if you are not there.


i said it like 4 times IM GETTING A PARALEGAL im not by myself lol I AM BEING represented i cant risk going by myself and saying something stupid but i do know they cant charge you with something that doesnt fit the event. ya careless is the umbrella charge i wasnt careless it was 100ft or less and reaction wasnt immediate more in shock and bad reaction as stated and i tried to pass to the left and it didnt work. and i cant be charged with following to close when the guy was 300FT AHEAD of me went over the hill i come over and hes almost stopped then hit him that is not follow to close so they cant charge me with that. and the only one that makes sense is 148(5) what the prosecutor can see with report and i have pictures and video of everything that it was simply failure to pass and avoid collision he cant charge me with anything esle NOTHING ELSE fits what happened . i will not let it go at follow to close that is terrible charge at 4 points big fine and it didnt happen so i will be very frank with the prosecutor that it is still elgal to cross a solid yellow the road wasnt wavy where i wouldve passed and i can see a good 1-1.5km ahead of where it happened and there was no cars coming in the oncoming thats why i tried . so i will be fighting this and also be very clear i am a honours student in school and if they charge me with a serious offense i wont be able to commit to my 65km a day driving and cant bus becasue i live in the country and that if they charge me with careless or follow to close i wont be able to attend school and be forced to drop out so i know it might not matter but it may shed some light that the fair and true charge 148(5) should be applied or else im just screwed more than just car and driving but with my entire future. ill make that very clear aswell if they decide to give me a different charge. and what the prosecutor will say well you shouldve thought of that before you hit him. and ill say just know your screwing a honest honour students life over who simply made a error with timing and now youll affect my entire life ill make sure even if it doesnt matter that they hear that part and remember it.


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Re: got careless driving ticket for HITTING the back of a tr
PostPosted: Wed Aug 19, 2015 10:04 am 
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Joined: Fri Oct 11, 2013 5:46 pm
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iFly55 wrote:
highwaystar wrote:
Actually, the officer absolutely needs to attend. Only they can properly identify you. Without that, the prosecutor fails to meet its case. Its weird that someone would even suggest that the officer is not essential; its not possible to prove the case otherwise since it fails on the ID element.

I don't want to distribute misinformation within the community. I can see where the argument can be made with respect to the ID element. Why can't the other driver identify the defendant?

Sharing my observations: on two occasions where I was the crown witness on a careless driving charge, the officers were not present. The defendants with their paralegal plead guilty to 148(5). I've also seen a different case where they proceeded to trial without the officer being present. The other driver identified the defendant.

If the lack of the officer's presence was fatal to the case? Why did they plea-deal and/or prosecution proceed to trial?


IFly55, sorry if my comments came off as an attack---they were poorly worded. My apologies. You have been a valuable contributor on this site and your posts have been helpful to many.

To try and answer your questions though, the reality is that I don't know why the prosecution proceeded to trial without the officer. The guilty plea is fine to proceed on since the defendant accepts the facts and no evidence is necessary. However, on most HTA charges, driver identification is critical since the offence is attributed to the driver. For some charges, like the red light camera, the owner is the one that is being charged so MTO records are used instead to ID the vehicle's legal owner at that time. That can also occur on some commercial vehicle charges. However, for most of the common charges like speeding, unsafe lane changes, careless driving, etc. driver ID is a critical element!

While it is not absolutely essential that the officer be present to testify about reviewing the driver's licences, without such authoritative testimony, the case should fall based upon a reasonable doubt standard. Let me explain. While driver ID is a critical element to most charges, the case law does not require such ID to be made by any specific means. So, an independent witness can attempt to ID the defendant and that would be enough to meet the first hurdle of the case-----that is, avoid a directed verdict. For those that don't know, a directed verdict happens where the prosecution fails to make out a 'prima facie' case----that is, they fail to introduce 'some evidence' on each element of the case. At the 'directed verdict' stage, the court does not 'weigh' the evidence; it simply needs to know that 'some evidence' was presented with regards to each element of the charge.

So, in that scenario, there WOULD be some evidence with regards to the driver's ID (i.e. the witness' testimony), so the prosecutor has made out their prima facie case.

However, when it comes time to 'weigh' the evidence and render a verdict, the court would be VERY hard-pressed to rely upon any identification that is not more definitive and/or corroborated. Many many cases have been decided with regards to how unreliable in-court identifications are. A lot of innocent people have been convicted based upon such ID tactics. For this reason, the courts generally prefer to have the officer's testimony about seeing the driver's license and comparing it to the likeness of the person. That minimizes the unreliability factor much more and reduces doubt.

So, there you have it. The reason the officer's testimony is critical is from an evidence perspective, not an legal burden. I find it odd that in the case you describe the person was actually represented by a paralegal. Clearly, that would have been the focus point to cross-examine on. Rarely should a conviction result in such a case. And, even more rare would be for an appeal court to not overthrow such a verdict.

So, while it was perfectly legal for the prosecutor to proceed to trial without the officer's testimony, it was quite the gamble on their part (and in my opinion, a waste of court time). The paralegal was clearly not very good at attacking the ID evidence. The client should also have also been strongly urged to appeal. The odds were overwhelming in favour of the defence.

But, that's the beauty of legal proceedings. Nothing is guaranteed!


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Re: got careless driving ticket for HITTING the back of a tr
PostPosted: Wed Aug 19, 2015 3:06 pm 
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Thanks for the detailed explanation. Your insight is invaluable, always learning.


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Re: got careless driving ticket for HITTING the back of a tr
PostPosted: Wed Aug 19, 2015 3:13 pm 
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highwaystar wrote:
iFly55 wrote:
highwaystar wrote:
Actually, the officer absolutely needs to attend. Only they can properly identify you. Without that, the prosecutor fails to meet its case. Its weird that someone would even suggest that the officer is not essential; its not possible to prove the case otherwise since it fails on the ID element.

I don't want to distribute misinformation within the community. I can see where the argument can be made with respect to the ID element. Why can't the other driver identify the defendant?

Sharing my observations: on two occasions where I was the crown witness on a careless driving charge, the officers were not present. The defendants with their paralegal plead guilty to 148(5). I've also seen a different case where they proceeded to trial without the officer being present. The other driver identified the defendant.

If the lack of the officer's presence was fatal to the case? Why did they plea-deal and/or prosecution proceed to trial?


IFly55, sorry if my comments came off as an attack---they were poorly worded. My apologies. You have been a valuable contributor on this site and your posts have been helpful to many.

To try and answer your questions though, the reality is that I don't know why the prosecution proceeded to trial without the officer. The guilty plea is fine to proceed on since the defendant accepts the facts and no evidence is necessary. However, on most HTA charges, driver identification is critical since the offence is attributed to the driver. For some charges, like the red light camera, the owner is the one that is being charged so MTO records are used instead to ID the vehicle's legal owner at that time. That can also occur on some commercial vehicle charges. However, for most of the common charges like speeding, unsafe lane changes, careless driving, etc. driver ID is a critical element!

While it is not absolutely essential that the officer be present to testify about reviewing the driver's licences, without such authoritative testimony, the case should fall based upon a reasonable doubt standard. Let me explain. While driver ID is a critical element to most charges, the case law does not require such ID to be made by any specific means. So, an independent witness can attempt to ID the defendant and that would be enough to meet the first hurdle of the case-----that is, avoid a directed verdict. For those that don't know, a directed verdict happens where the prosecution fails to make out a 'prima facie' case----that is, they fail to introduce 'some evidence' on each element of the case. At the 'directed verdict' stage, the court does not 'weigh' the evidence; it simply needs to know that 'some evidence' was presented with regards to each element of the charge.

So, in that scenario, there WOULD be some evidence with regards to the driver's ID (i.e. the witness' testimony), so the prosecutor has made out their prima facie case.

However, when it comes time to 'weigh' the evidence and render a verdict, the court would be VERY hard-pressed to rely upon any identification that is not more definitive and/or corroborated. Many many cases have been decided with regards to how unreliable in-court identifications are. A lot of innocent people have been convicted based upon such ID tactics. For this reason, the courts generally prefer to have the officer's testimony about seeing the driver's license and comparing it to the likeness of the person. That minimizes the unreliability factor much more and reduces doubt.

So, there you have it. The reason the officer's testimony is critical is from an evidence perspective, not an legal burden. I find it odd that in the case you describe the person was actually represented by a paralegal. Clearly, that would have been the focus point to cross-examine on. Rarely should a conviction result in such a case. And, even more rare would be for an appeal court to not overthrow such a verdict.

So, while it was perfectly legal for the prosecutor to proceed to trial without the officer's testimony, it was quite the gamble on their part (and in my opinion, a waste of court time). The paralegal was clearly not very good at attacking the ID evidence. The client should also have also been strongly urged to appeal. The odds were overwhelming in favour of the defence.

But, that's the beauty of legal proceedings. Nothing is guaranteed!



i talked to paralegal today and she said hamilton isnt that picky with the lane changing for 148(5) that they will accept a one way lane and crossing to the ooncoming lane for the act they arent picky like the barrie region or burlington or whatever


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